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Kuipers v Harrington (No 2)

Kuipers v Harrington (No 2)

Case [2019] VSC 190 25 March 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 02143

JOHANNES GERHARDUS KUIPERS	First Plaintiff
JUNE LORRAINE KUIPERS	Second Plaintiff
v
GERARD HARRINGTON	First Defendant
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2019
DATE OF JUDGMENT:	25 March 2019
CASE MAY BE CITED AS:	Kuipers v Harrington (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 190

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CAVEAT – Removal – Caveator lodging caveat claiming an interest in land as chargee – Caveat lodged without proper basis – No serious question to be tried – No interest of supporting caveat lodged – Balance of convenience favours removal of caveat in any event – Goldstraw v Goldstraw [2002] VSC 491; Piroshenko v Gosjman (2010) 27 VR 489; Percy & Michele Pty Ltd v Gangemi [2010] VSC 530; Sylina v Solanki [2014] VSC 2; Carbon Black Pty Ltd v Launder [2015] VSCA 126 referred to.

COSTS – Indemnity costs – Whether first defendant should pay the plaintiff’s costs on an indemnity basis – Caveat not having a proper basis, costs awarded against the first defendant on an indemnity basis – Goldstraw v Goldstraw [2002 VSC 491; Love v Kempton [2010] VSC 254; Sovereign MF Ltd (In liq) v EOS Janus Holdings Pty Ltd referred to.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Mr E Moon	McCarthy Partners
For the First Defendant	No appearance
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiffs apply pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (TLA) for an order that the second defendant (Registrar) remove the first defendant’s caveat registered in dealing AR908523L (second caveat) from the land described in certificate of title volume 04127 folio 290, being the land at 481 Truemans Road, West Rosebud, Victoria (Land).

The caveat is the second caveat that has been lodged against the title to the property by the first defendant. On 21 December 2018, Daly AsJ ordered the removal of a caveat lodged by the first defendant in dealing AR089617M (first caveat) from the title to the Land. That caveat was removed by the Registrar on 9 January 2019. The second caveat was lodged for registration on the title to the property on 7 February 2019.

The plaintiffs’ application is supported by the affidavit of the first plaintiff sworn 20 February 2019 (February affidavit), and by the affidavit sworn by the first plaintiff in support of the application to remove the first caveat on 2 November 2018 (November affidavit).

Service on the first defendant has been proved.[1] The Registrar has written to the Court in the usual way stating that he does not intend to appear but has written to the plaintiffs’ solicitors with his comments on the orders sought and included a copy for the Court.[2]
[1]Affidavits of Chontelle Davenport,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kuipers v Harrington (No 2)

Details

AGLC: Kuipers v Harrington (No 2) [2019] VSC 190
Case: [2019] VSC 190
Decision Date: 25 March 2019

CaseChat Overview and Summary

The case of Kuipers v Harrington (No 2) involved a dispute over the removal of a caveat from a parcel of land. The caveat was lodged by the first defendant, who claimed an interest in the land as a chargee. The plaintiff sought to have the caveat removed on the basis that it was not properly lodged and did not present a serious question to be tried. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the caveat lodged by the first defendant had a proper basis and presented a serious question to be tried. The court also considered whether the balance of convenience favoured the removal of the caveat. The court had to determine if the first defendant's claim of an interest in the land as a chargee was valid and if there was any merit to the caveat.

In delivering the judgment, the court found that the caveat was not properly lodged and did not present a serious question to be tried. The court noted that there was no evidence to support the first defendant's claim of an interest in the land as a chargee. The court also found that the balance of convenience favoured the removal of the caveat, as the plaintiff had a strong interest in the property and the caveat was hindering the plaintiff's ability to deal with the land. The court referred to several precedent cases, including Goldstraw v Goldstraw, Piroshenko v Gosjman, Percy & Michele Pty Ltd v Gangemi, Sylina v Solanki, and Carbon Black Pty Ltd v Launder, to support its decision.

The court ordered that the caveat be removed and that the first defendant pay the plaintiff's costs on an indemnity basis. The court found that the first defendant's actions in lodging the caveat were without proper basis and that the costs should be awarded on an indemnity basis. The court referred to Goldstraw v Goldstraw, Love v Kempton, and Sovereign MF Ltd (In liq) v EOS Janus Holdings Pty Ltd to support its decision on costs.

Orders